«In this regard, the following information must be publicized and disclosed:
i) Description of services offered, as well as of additional services, related facilities and features, including mobile internet access on national territory or while roaming. Where the roaming service is not automatically activated, providers must provide information on how this feature may be activated, as well as where additional information thereon may be obtained, namely including applicable tariffs;
ii) Any restrictions on access to services, resulting, namely, from the need to verify beforehand the technical conditions required to provide the service;
iii) Any restrictions in the access to global applications (e.g. VoIP), IP protocols and ports (e.g. SIP, POP 3, FTP);
iv) In the case of nomadic and home-zone services, users shall be provided information on how these services may be used, as well as on any associated restrictions;
v) Information on coverage of services, even if only by reference to where the user may obtain up-to-date information on service coverage and provision, making it clear, in this scope, that connectivity tests may be required to verify whether the service is available at the customer's area, where appropriate; in the case of nomadic and home-zone services, information shall be provided on restrictions related to location and area of use of the service; and
vi) Levels of quality of service provided - information on the levels of quality which the service provider undertakes to uphold with its customers, that is, minimum levels of quality of service to be engaged with the customer and those set out by law or regulation, which must be provided to each customer, non-compliance with which determines the payment of compensation or refund; the annex hereto suggests some parameters which companies may use.
vii) As regards the Internet access service, the disclosure of the maximum access and browsing speeds must be supplemented by a warning that the provided speed may not be ensured for each and every connection, at any given moment, as this depends on the level of use of the network and server which the customer connects to.
In the scope of Internet access services, and in order to ensure that users are provided with the clearest information on access speeds, it is also recommended:
- That interested parties are provided with clear and accurate information on the maximum access speed provided for the various offers, and with information on the respective estimated average access speed, that is, the speed which on average is estimated by the provider to be made available under normal usage conditions, which may frequently differ from the disclosed maximum speed, distinguishing between upload and download speeds;
- That interested parties are provided with clear and accurate information on migration between offers, specifically to meet a customer request to change its maximum speed; and
- That providers make available and duly highlight at their websites a feature that allows interested parties to measure their access upstream/downstream speed for a given period, whether instant or average.»
PT deems that item ii) of this point is not clear, and is likely to be interpreted in different ways. The need to verify beforehand the technical conditions required to provide the service is complex. In its view, general information could be provided on the technical feasibility of the service provision, without prejudice to carrying out a posterior a case-by-case analysis of the technical conditions of access to the service. The company adds that this information is currently covered in subscription contracts, which are the right place to provide such information.
On this aspect, it adds that [SCI][ECI].
APRITEL also objects to the requirement of verifying beforehand the technical conditions required to provide the service, deeming it to be unfeasible, as that verification of a given infrastructure may only be carried out by means of a case-by-case assessment of the situation, and there are no tools that allow the provision of an accurate information in other situations, although the client may be given prior information relatively to these conditions.
ANACOM's position
As regards the observations made by PT and APRITEL, it must be pointed out, in the first place, that this requirement (to verify beforehand the technical conditions required to provide the service) is already included in the determination currently in force.
As with most obligations set out in this scope, this concerns the objective of ensuring that consumers are provided with comprehensive information before contracting services. This is intended to prevent situations in which, a posteriori, it is found that service providers are unable to comply with their contractual obligations.
It is not required to identify all restrictions that will take place, but only those that may occur.
The argument that this information is covered in subscription contracts is unacceptable, as these prior verifications constrain the service provision, and therefore, it is absolutely justified and reasonable that this information is provided before the contract is concluded.
In fact, on this requirement it must be referred that ANACOM is frequently aware of situations where service subscribers verify, during performance the contract, that there are no technical conditions for the provision of the service or offer contracted with a given provider, which is deemed to affect users seriously.
Consequently, it is considered that information on the prior verification of the technical conditions required to provide the service is indispensable so that the user is able to make its decision to contract, thus the information must be made available prior to the conclusion of the contract.
As regards the obligation to disclose any restrictions on access to global applications, PT believes that it is frequently associated to the way how the consumer uses the service after it is subscribed. It refers further that this information already integrates the fair use policy or applicable contract conditions, thus it is opinion it is unnecessary to duplicate its provision in a pre-contract stage.
ANACOM's position
PT's argument is rejected. Again, this matter concerns the indication of any restrictions, and according to what PT refers, this company already has and provides this information elsewhere. The appropriate information of the user before the contract is concluded justifies that this information is provided in this scope also.
Zon proposes that the final part of item v) is recast to read «...in the case of nomadic and home-zone services, information shall be provided on restrictions, if any, related to location and area of use of the service» (emphasis added), justifying this alteration on the grounds that the discrimination of companies providing homezoning services, in equal conditions, must be avoided.
ANACOM's position
There is no discrimination in the item under consideration, as made clear in the response concerning item iii) of point b) of section A. As concluded therein, the alteration proposes by Zon is redundant as the wording of this item iii) already refers to "any restrictions".
Specifically on the requirement to provide levels of quality of service provided for in point vi), APRITEL, Vodafone, PT and Zon refer that the access speed of each customer depends on multiple factors, and that there is no technical solution that allows service providers to measure the average effective speed of a customer. As such, they conclude that it is not feasible to present the average connection speed for the invoiced period relatively to each customer, and so this requirement should be removed from the final determination.
Vodafone and Zon refer further that this impossibility to measure and guarantee the speed of each customer from resources in the operator's network results also from the fact that the access speed depends on various external factors, such as the equipment used by the customer, the number of applications used at the same time, server characteristics. These factors may not be measured or predicted, thus in Vodafone's opinion, this requirement should be removed from the final determination.
PT refers that the companies that integrate the Group do not provide information on average speeds or minimum levels of quality of service related to speeds provided on mobile broadband. This commitment is not undertaken in the scope of the respective commercial offer. This information is provided by the companies of the Group for the fixed broadband, with the indication of the factors that may condition its effective provision to the customer. However, it points out that an exhaustive and general disclosure of all factors that may impact the speed provided effectively is not possible.
As regards the roaming data service, PT stresses that it has a "best effort" basis, thus although information on maximum speeds provided in the network of each foreign operator may be made available, TMN may not provide information on the quality of service provided by foreign network operators.
Based on these arguments, and taking into account the absence of laws or regulations imposing on operators the disclosure of the minimum levels of quality provided, PT supports the removal of this item or its recast, so that it reads «...levels of quality of service provided, where appropriate...».
As regards the disclosure of minimum levels of quality, APRITEL declares that, except for the levels of quality of setup, maintenance and repair, this information should only apply to situations where the operator considers that these levels should be ensured.
ANACOM's position
Relatively to observations on the difficulty/inability to present the average speed value of connections provided on mobile broadband, it must be highlighted that the factors which influence the measurement of average speed on the fixed and mobile broadband are already known. As such, there seems to be no reason for failing to indicate, subject to the necessary reservations, the average speed of mobile broadband.
Service providers must thus inform users of average and maximum speeds which users may typically expect, and ISP shall also provide information in a transparent way on the situations in which the disclosed quality may not be ensured.
By disclosing an average speed in the terms described above, companies do not undertake to ensure in 100% of cases compliance with those values, but they provide information on an indicator which is measured on average, based on technical information to which companies have privileged access, and which, consequently, must be disclosed to users.
On the other hand, it must be referred that user claims on internet service speed are still very significant, especially as regards situations in which users complain that the speed achieved is frequently below the contracted speed level.
Specifically on the quality of services provided while roaming, this Authority refers to what was stated earlier: if companies disclose information on the quality of services provided while roaming, which is deemed to be beneficial and relevant, it should be referred that the disclosure of the quality of service is not an obligation, as it is not up to the national operator to guarantee it.
PT's proposal to recast this item, so that it reads «...levels of quality of service provided, where appropriate...» cannot be accepted. In any case, and as has been done for a similar obligation in section A, this obligation will be recast to read as follows:
«Levels of quality of service provided - information on the levels of quality of service which the customer may expect to be provided by the service provider, on average, and on the minimum levels of quality of service, set out by law or regulation, which must be provided to each customer (for example, for telephone services, the deadline for implementing portability provided for in the respective Regulation), non-compliance with which determines the payment of compensation or refund. The annex hereto suggests some parameters which companies may use.
The provider must also indicate how information on minimum levels of quality of the service to be provided may be obtained».
DECO agrees and welcomes the introduction of the obligation to provide a set of information on the characteristics and forms of the provision of the internet access service. However, it supports that only be establishing a quality regulation for this service it would be possible to effectively ensure the protection of the respective users.
ANACOM's position
ANACOM takes note of DECO's observation but stresses that this is not the appropriate fora for assessing the need to approve a regulation on internet access service quality.
FENACOOP considers that as regards information on minimum levels of quality (item vi) of point b) of section B) it is not sufficient to make a recommendation, as stronger regulatory action is required. Companies should disclose minimum levels of quality and should also be bound to indicate the technical means required by consumers to measure the upstream/downstream speed.
FENACOOP justifies this position referring that many claims are based on a lack of quality of service, and a significant part of disputes between users and electronic communication companies concern termination of contract on the basis of non-compliance or defective compliance, the consumer being faced with a situation of inequality vis-a-vis the service provider, as it does not have a credible means of controlling the speed and proving any non-compliances.
As such, it supports that providers should be bound to disclose the technical means for measuring speed, and that the minimum guaranteed access speed should remain within the parameters of quality of service referred in the annex.
ANACOM's position
This determination aims for the effective information of users, and there seem to be no arguments preventing information on maximum speed allowed for internet access and on average speed which users may typically expect for that access from being ensured. In addition to this information, ISP must provide transparent information on the situations in which the disclosed quality may not be ensured. Furthermore, where appropriate, they must also state that provision of this information is not a contract commitment contrary to the information on minimum quality which the ISP proposes to ensure and which will be contracted.
As far as technical means for measuring speed are concerned, there are websites where these tools may be obtained, thus the recommendation to provide this facility remains.
Bearing in mind that it is incumbent on service providers to set out the conditions which must be complied with to enable migration between offers, it is concluded that to meet information obligations laid down in article 47, communication companies are bound to provide this information, thus FENACOOP's proposal is accepted. As such, ANACOM, pursuant to paragraph 2 of article 47 of ECL amends the draft decision submitted to consultation so that the provision to interested parties of clear and accurate information on migration between offers is compulsory.
As regards the recommendation to provide information on migration between offers, PT and APRITEL declare that it is impossible to provide this information given the number of possible variants.
PT refers also that migrations will only occur after the consumer/user has already concluded a contract with the service provider, thus this matter should not be included in the list of pre-contract information.
ANACOM's position
The argument that migrations are a field which exceeds the pre-contract scope is not totally correct nor is it likely to lead to the result desired by PT. At issue is the awareness of aspects which are essential to enter into or to alter a contract. It is relevant that these conditions are known before the contract is concluded.
Having the migration taken place, the provider is bound to a different provision, although the parties are the same. The migration entails an act of will which is formed on the basis of previous information. The information on conditions that apply to migrations thus take a nature of pre-contract information; only after the migration takes place will a different contract be at stake.
Moreover, this determination concerns the provision of information on conditions of offer, and the law does not impose that these conditions are pre-contract ones. In fact, this information integrates contract commitments and as such will be in force during the performance of the contract. In this context, the information provided on migration of offers is relevant for the consumer in a pre-contract stage, as it is an element to be considered when the will to contract is formed. It is important that the user is aware, before deciding to contract a service, of the commercial flexibility of the provider, that is, the real possibilities of changing offers and tariffs, in the scope of the commercial offer of that company, as well as related charges - v.g. prices charged for altering the tariff of a service or for altering its characteristics.
Still on the matter of this information, it must be highlighted that ANACOM registers a high number of claims by users that complain about charges imposed for changing tariffs and other contractual conditions associated to the change of offers made available by the same provider. Seeking to decrease these points of conflict, the draft decision submitted to consultation thus recommends the disclosure of conditions to which migrations are subject.
On the basis of reasons set out above, ANACOM, pursuant to paragraph 2 of article 47, amends the draft decision along the lines mentioned above.
PT believes that the provision of a speed measuring tool in the terms recommended in the draft decision submitted to consultation would imply high investments on the part of operators, whether financially or in terms of resources, without yielding any benefits for consumers. Consequently, it takes the view that the provision of this tool is neither reasonable nor justified.
ANACOM's position
On this matter, and as referred earlier, there are several speed measuring tools available online for free (such as FCCN or http://www.measurementlab.net/measurement-lab-toolshttp://www.measurementlab.net/measurement-lab-tools), and service providers may consider referring their subscribers to these tools.
